48:0833(86)AR - - HHS, SSA, Office of Hearings and Appeals and AFGE, Council 215 - - 1993 FLRAdec AR - - v48 p833



[ v48 p833 ]
48:0833(86)AR
The decision of the Authority follows:


48 FLRA No. 86

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 215

(Union)

0-AR-2453

_____

DECISION

November 3, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator M. David Vaughn filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Union filed a grievance alleging that the Agency violated the parties' collective bargaining agreement when it failed to accord the grievant priority consideration for a position. The Arbitrator sustained the grievance and awarded the grievant backpay and benefits lost as a result of the Agency's violation of the parties' agreement. As part of his award, the Arbitrator directed the Agency to reimburse the Union for the cost of one hearing day and one-half additional day of the Arbitrator's time. The Agency excepts only the portion of the award that requires payment to the Union.

For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient. Therefore, we will deny the exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance claiming that the Agency had failed to accord the grievant priority consideration for the position of Congressional and Public Inquiry Analyst (CPIA). The grievance was not resolved and was submitted to arbitration. The Union advised the Agency of its intent to call a particular witness at the hearing and requested authorization for travel and per diem for that witness. The Agency refused to authorize the travel. The parties were unable to resolve this matter prior to the hearing. At the hearing, the Union raised the Agency's refusal to authorize travel for the Union's witness as a threshold issue. The Arbitrator ruled that the witness's testimony, which related to the contract provision regarding priority consideration, was relevant to the case and that there was nothing to preclude the Agency from paying his travel expenses. The Union requested a continuance in order to obtain the witness's presence. The Union also argued that the Agency should be held responsible for the expenses connected with the additional hearing day and other time attributable to its refusal to authorize travel for the Union's witness. The Agency opposed the request, arguing that the Union could have produced the witness at its expense and sought reimbursement later. The Arbitrator took that issue under advisement.

Subsequently, the parties reconvened the hearing. On the merits of the grievance, the Arbitrator framed the issue as follows:

Did the Agency violate the National Agreement, the law and/or regulations, by not affording the grievant bona fide priority consideration for non-competitive selection and by not selecting Grievant for the Congressional and Public Inquiry Analyst Position to the position of Congressional and Public Inquiry Analyst (GS-301-7/9) under Vacancy Announcement No. OHA-91-23? If so, what shall the remedy be?

Award at 2.

The Arbitrator found that the Agency did not afford the grievant "the full, bona fide, good faith priority consideration" that Article 26 of the parties' agreement required.(1) Id. at 15. He stated that under the agreement, priority consideration "must take place prior to, and not in competition with, or comparison to, other applicants on the [Best Qualified] List" and that an employee may not be rejected under priority consideration merely because there is or might be a better candidate for the position. Id. at 13. Although the Arbitrator noted that priority consideration was not equivalent to selection, he determined that it is a "substantive right accorded employees, to which obligations and benefits attach, and not merely . . . a procedural exercise." Id. at 14. The Arbitrator concluded that, but for the Agency's failure to afford the required consideration, the grievant would have been selected for the CPIA position.

The Arbitrator also addressed a claim that the Agency discriminated against the grievant, based on protected activity, when she was not selected for the CPIA position. In this regard, the Arbitrator found that the grievant had exercised her right to priority consideration as a result of a grievance settlement and that this information had been communicated to the selecting official in violation of the parties' agreement. The Arbitrator found that the Agency failed to demonstrate that the grievant would not have been selected had she not engaged in the protected activity of filing a grievance.

In ordering relief, the Arbitrator initially granted the Union's request to amend the remedy portion of the grievance. He directed the Agency to promote the grievant to the next available CPIA position that she would have received if the Agency had not acted improperly and to make her whole for any lost pay and benefits. The Arbitrator also retained jurisdiction for the limited purpose of calculating the pay and benefits due. However, the Arbitrator rejected the Union's request that the selecting official be disciplined and that the Agency apologize to the grievant.

The Arbitrator also addressed the Union's request for travel and per diem for its witness, payment for the additional hearing day and for the Arbitrator's time, and $1,000.00 in damages. Having found that the testimony of the Union's witness was necessary, the Arbitrator further found that by refusing to authorize the witness's travel, the Agency violated Article 25, Section 5(E) of the parties' agreement. The Arbitrator stated that the Agency's authority to reduce the number of witnesses was limited to "eliminat[ing] duplicative testimony" and "[did] not allow the Agency to dictate the manner in which the Union presents its case." Id. at 20 (emphasis omitted). The Arbitrator concluded that the Agency's violation of the agreement directly "resulted in the prolongation of the hearing process" and "added an extra issue, and extra time, to this analysis." Id. at 21. Accordingly, the Arbitrator directed the Agency to pay the Union $300.00, for the Union's share of one hearing day and one-half an additional day of the Arbitrator's time, corresponding to "the amount of extra time attributable to the Agency's improper action." Id. However, the Arbitrator denied the Union's request for $1,000.00 in damages on the basis that such damages were "indirect, speculative, and unproven." Id.

III. Positions of the Parties

A. Agency

The Agency excepts only the portion of the award that directs the Agency to pay the Union's share of one hearing day and one-half additional day of the Arbitrator's bill. First, the Agency argues that the award fails to draw its essence from the parties' agreement. Specifically, the Agency notes that Article 25, Section 5(B) of the agreement provides that the Arbitrator's fees and expenses will be shared equally by the parties. The Agency maintains that the Arbitrator understood that the allocation of fees would be governed by Article 25, Section 5(B) of the agreement. However, the Agency asserts that the Arbitrator disregarded the language of that provision by directing the Agency to pay an unequal share of the Arbitrator's fees. The Agency also claims that the Arbitrator exceeded his authority. In this connection, the Agency maintains that the Arbitrator modified the fee provision of the agreement in violation of Article 25, Section 6, which states that the Arbitrator has no power to add to, subtract from, disregard, alter, or modify any terms of the agreement.

B. Union

The Union notes that the parties did not stipulate the issues to be resolved by the Arbitrator. In the absence of a stipulation, the Union contends that the Arbitrator's formulation of the issues and remedies must be accorded substantial deference. In this regard, the Union argues that the Arbitrator properly formulated an equitable remedy based on his interpretation of the parties' agreement. The Union claims that the Arbitrator found that Article 25, Section 5(B), on which the Agency based its arguments, related only to the responsibility of each party to pay the Arbitrator one-half of his fees and expenses but did not preclude him from awarding compensation to either party. Accordingly, the Union maintains that the Agency's exceptions constitute mere disagreement with the Arbitrator's interpretation of the parties' agreement and do not provide a basis for finding the award deficient.

IV. Analysis and Conclusions

For the following reasons, we find that the Agency has failed to establish that the award is deficient. Consequently, we will deny the exceptions.

First, we reject the Agency's contention that the award is deficient because it fails to draw its essence from the parties' agreement. For an award to be found deficient on this basis, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1043 (1991).

The Agency has not demonstrated that the award fails to draw its essence from the parties'